by Emma | Jan 9, 2018 | Newsletter
There is every chance that at some point during winter, your employees will encounter issues either weather or transport related when getting to/home from work.
We recommend you put a clear policy in place regarding adverse weather so that staff are absolutely clear about your expectations e.g. will home working be permitted, can staff take holiday, will they be able to make the time back up, can they leave work early if it starts to snow etc.
If you don’t yet have a policy in place, please call us.
by Emma | Jan 2, 2018 | Newsletter
HAPPY NEW YEAR
WHATS COMING UP IN 2018?
Increases to the national living wage and national minimum wage
From April next year the NLW will increase by 4.4% from £7.50 to £7.83. At the same time the NMW will be increased as follows:
- From £7.05 to £7.38 for 21 to 24 year olds;
- From £5.60 to £5.90 for 18 to 20 year olds;
- From £4.05 to £4.60 for 16 and 17 year olds; and
- From £3.50 to £3.70 for apprentices.
General Data Protection Regulations – 25th May 2018
If you haven’t already started to look at these regulations, we suggest you start now.
Please contact us if you need assistance with Data Protection policies and Privacy policies. We can also assist you with a data audit.
Grandparental leave
Date to be confirmed by the government – watch this space.
Parental Bereavement Leave
This will entitle employees who lose a child under the age of 18 to two weeks’ leave, paid at the statutory rate if they have 26 weeks’ service. This will be passed through parliament this year.
Cases to note:
TK Maxx overlooked mental illness
TK Maxx dismissed an employee who had sworn and abused a customer, knowing that he had a history of depression and anxiety, which negatively affected his sleep and mood and sometimes made him angry. He was taking medication and having therapy for his condition.
While the tribunal accepted that TK Maxx had genuinely believed the employees conduct to be gross misconduct, the tribunal found that dismissal did not fall within the range of reasonable employer responses as the employer had failed to take into account relevant mitigating factors.
Illegality not a fair reason to dismiss
Mr Baker was a Jamaican national who was known to have the right to live and work in the UK. Abellio carried out right to work checks, suspended Mr Baker without pay and then, when he did not provide sufficient documentary evidence of his right to work in the UK, dismissed him by reason of illegality.
The tribunal held that the dismissal was fair, but the EAT disagreed. The claimant wasn’t subject to immigration control under section 25 of the Immigration Act 2006 and so the “right to work” check under section 15 did not apply. In any case section 15 operates to excuse an employer from a penalty if it checks specific documents; it does not impose an obligation on the employer to obtain the documents. The EAT held that it was possible for Mr Baker to have been dismissed for some other substantial reason if Abellio had a genuine but erroneous belief that employment was illegal. The issue of the fairness of a mistaken belief was remitted back to the tribunal for further consideration.
Illegality will not be a fair reason for dismissal if no obligation exists on the employer to check documentation relating to their immigration status and right to work. However, the civil penalty can be up to £20,000 and the only way to protect against liability is to conduct a full right to work check.
Be honest about why your dismissing an employee
Mr Rawlinson was employed as an in-house legal counsel. A few months into his employment, his employer decided to dismiss him due to concerns about his performance even though it had not raised any issues with him. Mr Rawlinson was told that his employer had decided to outsource legal services and wanted him to work his three months’ notice to ensure a smooth handover. Mr Rawlinson resigned with immediate effect on the basis that TUPE would apply and that the employer was acting in breach of its statutory obligations. He brought various claims, including a breach of the duty to inform and consult under TUPE and wrongful constructive dismissal.
The tribunal rejected both of these claims. On appeal the EAT held that the implied term of trust and confidence should generally import an obligation not to deliberately mislead.
The EAT also held that although Mr Rawlinson had not resigned because of the lie (at the time he did not know he was being given a false reason for his dismissal) he could still rely on his employer’s conduct as justifying his resignation, irrespective of his reason for resigning at the time.
Although it may seem easier (and quicker) to terminate an employee’s employment without going through a capability procedure (especially in cases like this where the claimant has under two-years’ service and therefore has no right to bring an unfair dismissal claim) it’s better to follow the proper procedures and to give an employee the real reason behind a decision to dismiss. A failure to do so may result in successful breach of contract claims. |
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ET and EAT Fee refunds |
The government has rolled out the refund scheme for ET and EAT fees in full. The scheme is open to both claimants and respondents who paid a fee and includes those who had to reimburse their opponent for a fee incurred by the opponent pursuant to an order. The scheme is also open to representatives and sponsors who paid a fee on behalf of a party to a claim (and who have not been reimbursed).
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Those eligible can apply online or by post using the prescribed forms. Refund Form 1-C is for claimants. Refund Form 2-R is for respondents, and Refund Form 3-S is for representatives and sponsors who paid a fee, as well as for lead claimants in a multiple claim.
The refund scheme dos not cover payments under a settlement agreement designed to compensate a claimant for a fee that they might have paid. The claimant remains eligible to apply for a refund under the scheme.
Failure to risk assess breastfeeding sufficiently
The claimant was a nurse working in a hospital’s A&E unit. Her employer’s risk assessment for her as a breastfeeding worker had concluded her work was ‘risk-free’ but when she requested for an adjustment to her working pattern, it was declined.
The CJEU held that if a breastfeeding mother can show an assessment was defective or not carried out, it gives rise to a prima facie (“on the face of it”) case of discrimination.
Smoking breaks
A Japanese company has taken the extraordinary step of rewarding non-smokers with six extra days holiday a year to make up for the time their smoking colleagues spend on cigarette breaks. They estimate it takes around ten-fifteen minutes for each break but did not want to restrict smoking breaks entirely. The company believes cigarette breaks are a positive use of time as they provide the opportunity for colleagues to get together and talk about work or come up with ideas away from their desks. Instead, they hope the incentive will make people want to quit smoking to receive more holiday leave.
For ideas on how to make your policies fairer for non-smokers please contact us.
First company to be found guilty of failing to auto-enrol
A bus operator has become the first employer in the UK to be found guilty of failing to auto-enrol its staff on to a workplace pension scheme.
Oldham-based Stotts Tours and its managing director, Alan Stott, admitted deliberately avoiding setting up workplace pension schemes for 36 staff, despite employees meeting auto-enrolment criteria, the Pensions Regulator reported.
Colour blindness a disability?
An employment tribunal has held that a claimant’s red-green colour blindness is not a disability.
In Bessell v Chief Constable of Dorset Police, Mr Bessell has deuteranopia. In other words, he has red-green colour blindness. He has difficulty distinguishing between red and green, the combination of grey and pink also causes him difficulty. Mr Bessell has no other vision problems. Mr Bessell brought a disability discrimination claim under the Equality Act 2010. He claimed discrimination arising from disability, indirect disability discrimination and failure to make reasonable adjustments. He also brought a claim for indirect sex discrimination.
A preliminary issue before the disability discrimination claim could proceed was whether or not Mr Bessell’s condition constitutes a disability under the Equality Act 2010. The issue turned on whether or not the impairment has a “substantial and long term adverse effect on [his] ability to carry out normal day-to-day activities”. This first-instance decision is not binding on other courts and tribunals and there would be nothing to stop a more severe form of colour blindness from being considered a disability.
Since colour blindness primarily affects men, by far the bigger risk for employers is a claim for indirect sex discrimination.
by Emma | Jan 2, 2018 | Newsletter
We hope that 2018 will be a great year for your business.
We are here to help you get the most out of your employees and ensure you comply with legislation along the way.
EC Human Resources Ltd are offering all of our customers a free HR audit in the months of January and February.
Please contact us to book!
by Emma | Dec 15, 2017 | Newsletter
Can employers can make deductions from employees wages if they turn up for work late the morning after the company Christmas party as long as the right to make deductions from wages for unauthorised absence is detailed in the employee contract.
If disciplinary action is to be taken for lateness or non-attendance after the Christmas party, employers should ensure that staff are informed that this is a possibility in the disciplinary policy.
Where an employee does not attend due to illness, the employer should follow its absence management policy and procedures.
If you would like us to review your disciplinary or absence policies then please contact us.
We strongly advise that if you are arranging a Christmas party that you issue a memo to all employees prior to the event to remind them that coming into work late the following day is not permitted.
by Emma | Dec 15, 2017 | Newsletter
Christmas is the time when many organisations start receiving gifts from grateful suppliers/customers.
Whilst we all enjoy the odd box of chocolates, it’s worth reminding staff of what is an acceptable gift.
Be clear that they are welcome to keep or share any gifts of minor value (e.g. less than £5) that they receive, but that they will need to inform a manager about any larger gifts, or gifts where the intention of the gift is questionable (e.g. to encourage you to agree a proposal/sale)
We encourage businesses to have a clear policy on accepting gifts, this way employees can inform their clients and suppliers of what is acceptable.
If you don’t have an Anti-Bribery Policy or an Accepting Gifts Policy, this could be a good time to implement them.
Don’t get irritated with staff who don’t share gifts with colleagues, or let you know what they have received if you have never published a policy that clearly sets out what is required and acceptable.
Many businesses have an annual raffle to share the gifts around the workforce, which means that employees who are not in a position to receive gifts have the opportunity to receive one.
by Emma | Dec 15, 2017 | Newsletter
The Christmas party should be a great opportunity for some fun team building! However, in reality, 90% of employers have experienced an issue arising from a Christmas party and 10% of employees know someone who has been disciplined or dismissed for an incident connected to a Christmas party – so it’s not all harmless fun!
Issues which may arise include:
- Late night, post party, misuse of the copier and scanner
- Late night visits back to the office, then leaving the premises unlocked/unalarmed
- Offering, selling drugs to colleagues or taking drugs
- Driving whilst under the influence/refusing to hand over keys to a vehicle
- Sexual and racial harassment
- Bullying and aggression
- Violent behaviour towards manager or colleagues – often alcohol induced
- Embarrassing photos or inappropriate comments posted on social media
- Heat of the moment arguments leading to unintended, and often later regretted, resignations
To make sure everything goes smoothly, you might want to be clear about your behaviour expectations. Be clear that whilst you want everyone to have fun, the normal standards of professional behaviour apply and anyone who does not maintain professional behaviour may be dealt with formally.
As an employer, you have vicarious liability for your employees’ behaviour, even if the behaviour takes place during a Christmas Party:
- If one of your employees makes discriminatory or offensive comments, or even just gossips about another employee, there is the risk that you could receive a claim and be liable for their behaviour.
- Ensure everyone is familiar with your bullying and harassment policy. Refer employees to your social media policy as not everyone will appreciate party photos being posted on Facebook etc.
- You might also consider designating a senior person to avoid alcohol during your celebration. This will ensure that someone remains vigilant throughout the occasion.
- To minimise the risk of any religious discrimination claim, be considerate of all staff when planning parties including the day and time, theme and catering arrangements.
If you would like any assistance with writing memos to employees prior to an event or have any disciplinary or grievances as a result of a Christmas party then please get in touch with us.
